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ELCStruck OutNot stated in the extract provided

Dofu & 3 others v Ngome & 7 others (Constitutional Petition E021 of 2024) [2025] KEELC 3896 (KLR)

Environment and Land Court
15 May 2025
3,686 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a petition challenging a Minister's land adjudication decision, ruling that judicial review—not a constitutional petition—is the only proper route.

What this practically means

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Executive summary

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The petitioners filed a petition together with a Notice of Motion dated 10 December 2024 seeking conservatory orders restraining the respondents from alienating, registering, issuing title over, or implementing the Minister's decision in Ministerial Appeals Nos. 581 and 583 of 2022 concerning land parcels in the Miyunu/Mleji 'B' adjudication area, pending determination of the petition. They alleged violations of Articles 25(c), 27(1), 40(1), 47(1), 48, 60(1)(b), 63 and 65 arising from the conduct of the ministerial appeal, in which they were given only five minutes to respond while the 1st respondent had two and a half hours. The 1st respondent filed a preliminary objection contending that under Section 29 of the Land Adjudication Act, Cap 284, the Ministerial Panel's decision is final, and that any challenge lay only by way of judicial review. Applying the Mukisa Biscuit test for preliminary objections, and guided by Owners of the Motor Vessel 'Lillian S' on jurisdiction, Speaker of National Assembly v Karume on strict adherence to prescribed procedures, and Robert Kulinga Nyamu, Amarnath and John Masiantet Saeni on the finality of ministerial decisions under the Land Adjudication Act, the court held that quasi-judicial decisions under the Act are challengeable only through judicial review. The petition was an attempt to appeal the Minister's decision through the back door and was incompetent. The court struck out the petition in its entirety with costs, and declined to consider the conservatory application, which had become academic. The ruling was delivered virtually in Malindi on 15 May 2025 by E. K. Makori J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st respondent's preliminary objection has merit and warrants dismissal of the entire petition for want of jurisdiction
  2. 2.Whether temporary conservatory orders should be issued pending determination of the petition
  3. 3.Who should bear the costs

Key legal issues

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01

Jurisdiction of the ELC to entertain a constitutional petition challenging a Minister's decision under Section 29 of the Land Adjudication Act

Holding

The court lacks jurisdiction; the petition is incompetent and must be struck out

Reasoning

The Ministerial Panel's decision under Section 29 of Cap 284 is final in mandatory terms. Quasi-judicial bodies under the Act may only be challenged through the court's supervisory jurisdiction by way of judicial review, particularly under Article 47 and the Fair Administrative Action Act. The petitioners' allegations of constitutional violations (Articles 25(c), 27(1), 40(1), 47(1), 48, 60(1)(b), 63, 65) could not cure the wrongful invocation of jurisdiction; a petition cannot be used to re-litigate or appeal a concluded adjudication process.

p. 6
02

The test for a valid preliminary objection

Holding

The Mukisa Biscuit test applies: a PO must raise a pure point of law on admitted facts

Reasoning

Relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and the Court of Appeal in Attorney General v Andrew Maina Githinji, the court reaffirmed that a preliminary objection must raise a pure point of law, with the facts pleaded by the other side taken as correct and no fact requiring ascertainment. Jurisdiction is a proper subject of a PO and must be decided at the earliest opportunity, as jurisdiction is everything.

p. 3
03

Whether alleged constitutional violations permit a petition instead of judicial review

Holding

No - where a specific statutory remedy exists, it must be strictly followed

Reasoning

Although the court accepted that constitutional rights may have been infringed in the ministerial appeal process, and that review of administrative action is anchored in Article 47 and the Fair Administrative Action Act, the petitioners still had to pursue judicial review. Citing Speaker of National Assembly v Karume, the court held the special statutory procedure must be strictly adhered to; the constitutional petition route was therefore improper.

p. 4

Legal principles established

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  • Decisions of the Minister/Ministerial Panel on appeal under Section 29 of the Land Adjudication Act are final, and challenges to them lie only through judicial review, not by petition or ordinary suit
  • Where the Constitution or an Act of Parliament prescribes a clear procedure for redress, that procedure must be strictly followed
  • A petition used to challenge a final ministerial decision under the Land Adjudication Act is an impermissible appeal through the back door and is incompetent

Court orders

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  1. 1.The Petition is struck out in its entirety
  2. 2.Costs of the petition awarded to the respondents (petition struck out 'with costs')
  3. 3.The application dated 10 December 2024 for conservatory orders was not considered, having become academic

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 25(c), 27(1), 40(1), 47, 48, 60(1)(b), 63 and 65 of the Constitution (as invoked by the petitioners); challenged under Section 29 and Section 30 of the Land Adjudication Act, Cap 284

Relief refused

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Temporary conservatory orders restraining alienation, registration, issuing of title and implementation of the Minister's decision in Appeals 581 and 583 of 2022 pending inter partes hearing and determination of the petition

The petition itself was struck out for want of jurisdiction, rendering the application academic

p. 9

Costs of the application

The petition was struck out with costs against the petitioners

Costs

The petition was struck out 'in its entirety with costs' - i.e. costs awarded to the 1st respondent/respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, the Petition submitted to this court against the Respondents is incompetent and is therefore struck out in its entirety with costs based solely on the aforementioned ground.
p. 9Final orders - striking out of the petition
Since I have downed judicial tools, discussing the application dated December 10, 2024, will be an academic exercise.
p. 9Disposal of the conservatory application
Jurisdiction is everything. Without it, a court has no power to make one more step.
p. 3Primacy of jurisdiction
the Petitioners have bypassed the proper channels by submitting the current Petition to challenge the Minister's decision – an appeal through the back door.
p. 6Improper invocation of constitutional petition jurisdiction
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
p. 4Exhaustion of statutory remedies

Issues in the judgment

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minor

The judgment text is internally inconsistent on the affected land parcels, referring variously to parcels 162 and 169, and to MIYUNI/MLEJI 'B'/196 and 162

minor

Numbering in the judgment is disordered (a second paragraph numbered 23 appears within the quote of Amarnath), and opening numbered paragraphs 1 and 2 are blank

minor

Grammatical slip suggesting possible concession contrary to the holding

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dofu & 3 others v Ngome & 7 others (Constitutional Petition E021 of 2024) [2025] KEELC 3896 (KLR)", Case Analysis (2025). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3896/eng@2025-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.